Erap asks Sandigan to reconsider plunder conviction

Lawyers of convicted former President Joseph Estrada yesterday filed a motion for reconsideration (MR) before the Sandiganbayan Special Division seeking to reverse the conviction on his plunder case.

Estrada’s counsels led by Jose Flaminiano and spokesman Cagayan de Oro Rep. Rufus Rodriguez filed the 63-page motion before the anti-graft court.

In a statement, the defense team said the MR is based on a number of violations of the rights of the accused that are guaranteed by the Constitution.

Estrada was convicted of plunder last Sept. 12, and was sentenced to 40 years imprisonment. He was acquitted of a lesser crime of perjury.

The lawyers said that the accused was deprived of his constitutional right to due process and to be informed of the nature and cause of the accusation against him, because the Sandiganbayan proceeded on the assumption that the four counts of plunder alleged in the amended information were separate and independent acts of plunder, instead of being considered as the means through which only one crime of plunder was committed. 

They said, as a result, under the decision of Sept. 12, the defense was burdened four times heavier than the prosecution. 

In other words, the accused, if he worked for an acquittal, would have to prove his innocence four times.

They said the prosecution would have to prove only one of the four counts to obtain a conviction.

The predicates cited by the prosecution were issues regarding the jueteng collections, tobacco excise tax, Belle Corp. shares, and the Jose Velarde bank account.

“This violates the sporting idea of fair play, which is the essence of due process, and it resulted in mistrial,” the defense lawyers said.

The second ground cited by the defense said that the accused was deprived of his right to be informed as he was convicted of an offense which was not included in the amended information.

They said the prosecution did not allege in the information that the crimes included therein were committed by reason of his public office.

In the decision of the Sandiganbayan, while calling the acts attributed to the accused as “plunder,” the anti-graft court actually convicted Estrada of illegal gambling, the lawyers said.

The amended information also alleged that the acts committed by the accused were done “in consideration of toleration or protection of illegal gambling” yet no evidence was presented to prove this allegation.

There was in fact even no evidence to prove that there was illegal gambling, Estrada’s lawyers said. 

Since the money allegedly collected by the principal witness, former Ilocos Sur governor Luis “Chavit” Singson, were all private funds, the other element of plunder alleged in the amended information “unjustly enriching himself or themselves at the expense and to the damage of the Filipino people and the Republic of the Philippines,” had no proof to stand on.

An accused can be convicted of an offense only when it is both charged and proved.

The lawyers said it was pointed out in the third ground for reconsideration that it was not the accused, but other persons, who amassed, accumulated or acquired ill-gotten wealth, and these persons were not included in the amended information as co-conspirators.

They said the crime of plunder is basically a crime involving conspiracy by many persons, and the two alleged conspirators of Estrada, namely his son Senate President Pro-Tempore Jinggoy Estrada and lawyer Edward Serapio, were acquitted by the court. 

Due to the failure of the information to include the other co-conspirators, this is fatal to the prosecution, they said.

An allegation of conspiracy, or one that would impute criminal liability to an accused for the act of another or others, is indispensable in order to hold such person equally guilty with the others, they said.

Failure to include in the information the co-conspirators as defendants would deprive the accused of his right to be informed of the nature and cause of the accusation against him, in violation of the constitutional guarantee.

They further emphasized as the fourth ground for reconsideration, the admission by the court of inadmissible hearsay evidence, which violated the right of the accused to confront witnesses against him. 

While the court rejected the oral testimony of the principal witness Singson to the extent that the court had to acquit both Serapio and Senator Estrada from the charges leveled against them, the court nonetheless gave credence to Singson’s testimony against Estrada which was corroborated by other evidence.

But the anti-graft court used, by way of corroboration, the ledgers prepared by or under the supervision of Singson. 

This is not only against the rules of evidence but is also unusual because it was proven that Singson manufactured formal documents to show that the P200-million tobacco excise tax was fully liquidated and settled.

“If Singson could falsify formal contracts, receipts, and resolutions, he could more easily fabricate loose leaf ledgers and scraps of paper to implicate the accused, whom he perceived to have plotted his (Singson’s) assassination. The rest of the corroborative evidence used by the court to bolster the oral testimony of Chavit Singson consisted of inadmissible hearsay,” the defense said.

Lastly, the accused was denied the constitutional presumption of innocence as the court convicted him on the basis of surmises, inferences and speculative evidence, the defense team said. 

The accused was convicted on the basis of what the court calls circumstantial evidence, but the factual basis for such evidence was not proven, they said.

Love of truth

“Only those who love themselves more than they love the truth will not be minded to change their opinions. But we believe that the justices of the Sandiganbayan love the truth. That’s why we dared to file this motion for reconsideration in the hope that they will study our motion, give it due consideration and ultimately reverse their judgment,” said Flaminiano.

Flaminiano said the prosecution made a fatal mistake by not alleging in the information that the jueteng money was received by Estrada by reason of his office.

“That is a big mistake of the prosecution. Mga pari tumatanggap ng jueteng money. There are allegations in the newspapers. These are private individuals. And besides, if Estrada has a rich friend in America, a billionaire and who wants to give a million a month because of friendship, there is no plunder committed here, because the money is not given by reason of the office of the President,” said Flaminiano.

Flaminiano also said Singson’s testimony should not have been admissible.

No reversal

The Office of the Special Prosecutor expressed confidence that the conviction of former President Joseph Estrada will not be reversed even if an appeal is elevated to the Supreme Court.

Special Prosecutor Dennis Villa-Ignacio said once the appeal of Estrada will be elevated to the SC, all four predicates stated in the plunder charge, and not just two which the anti-graft court said, might even be cited as reasons to uphold the conviction of the former president.

“We feel that in all four predicates, Estrada should have been found liable. But, that is our strategy, instead of just one predicate crime, we opted for four so that the prosecution would have four chances. We opted for four, and we were able to get two. If there is an MR and this will be elevated to the Supreme Court, baka lumabas apat pa. We feel that our case is really very strong,” said Villa-Ignacio.

Villa-Ignacio said he would wait for a copy of the MR filed by Estrada before making comment.

Malacañang clarified that President Arroyo has not offered any pardon to Estrada at any time, especially now that a motion for reconsideration has been filed before the Sandiganbayan.

Executive Secretary Eduardo Ermita said that the exploratory talks between Interior Secretary Ronaldo Puno and the former president were Puno’s initiative and may have gotten the clearance of Mrs. Arroyo.

However, Ermita pointed out that Puno was given no instructions to offer pardon to Estrada.

“The Palace is not convincing Erap to accept pardon. The grant of pardon is premised on the finality of the decision. Puno is trying to explore but he has no instructions to offer pardon,” Ermita said.  – With Marvin Sy